United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A STEIN (of Counsel) Instructed By: Miss Amber Hewett Wandsworth & Merton Law Centre 101a Tooting High Street London SW17 0SU
For the Respondents	MS K STEYN (of Counsel) Instructed By: Miss R Wayte Messrs Osbornes Soliciors 68 Parkway London NW1 7AH


 


MR JUSTICE CHARLES: The parties to this appeal are a Miss Onomor, who is the Appellant, and Osbornes, a firm of Solicitors, who are the Respondents.

1. The Appellant appeals against the decision of an Employment Tribunal, the Extended Reasons for which were sent to the parties on 28 September 1998.
2. The decision was that the Employment Tribunal had no jurisdiction to hear the Appellant's complaint under section 54 of the Race Relations Act because she had not issued her Originating Application within the time limit set by section 68 of the Race Relations Act 1976 and it would not be just and equitable to extend time.
3. The most relevant statutory provisions are contained in section 68 of the Race Relations Act 1976 and they are as follows:

"(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done.

(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section -

(a) ...

(b) any act extending over a period shall be treated as done at the end of that period; and

... "

4. On this appeal the Appellant has not challenged the conclusion of the Employment Tribunal that if, as they found, the application was made out of time it was not just and equitable to extend time. Accordingly we are not concerned with that part of the decision of the Employment Tribunal.
5. The appeal has been directed to the question whether the application was, as found by the Employment Tribunal, out of time. This issue turns on the answer to the question when "the act complained of was done".

The Relevant Factual Background

6. This was helpfully set out in a skeleton provided by Counsel for the Respondents. This skeleton was based on the Appellant's Originating Application. The allegations of racial discrimination are denied and the Respondents made no admissions as to the correctness of the factual background which we now set out.
7. The Appellant began her employment with the Respondents on 7 December 1995 initially as a Receptionist. The Appellant states that in April 1996 she was promoted to the position of Paralegal in the Respondents' Matrimonial Department and in September 1996 she was given the role of Trainee Solicitor in addition to her Paralegal duties.
8. In January 1997 the Appellant's fixed term employment with the Respondents was extended until September 1997. The Appellant states that in February 1997 she was moved to the Litigation Department as an "Acting Trainee Solicitor" and in April 1997 the Respondents agreed that she could complete her Articles with the firm, commencing in September.
9. On 8 July 1997 the Appellant was given a written warning and told that she could not commence training until September 1998. On 5 September the Respondents made "further allegations about the Applicant's competency" and stated that a meeting would be held when she returned from sick leave.
10. On 19 September 1997 the Respondents sent the Appellant a letter (which she received the following day) giving her notice that her contract of employment would be terminated with effect from 31 October 1997. The Appellant did not return to work from sick leave and on 22 October 1997 she wrote to the Respondents.
11. The Appellant's P45 is dated 27 October 1997, states that her leaving date is 31 October 1997 and gives a figure for her "pay to date". Counsel for the Respondents had no instructions as to the date to which that pay was calculated. The natural and overwhelming inference from the P45 is that it was calculated up to 31 October 1997.
12. There was no evidence before the Employment Tribunal, or before us, as to what, if anything, the Respondents did in reaction to the letter of 22 October 1997.
13. The letter dated 22 October 1997 is the document that founds the statements or conclusions in the Extended Reasons that the Appellant resigned. We shall return to the point whether or not the Appellant resigned, later in this judgment.
14. The terms of the two letters dated 19 September 1997 and 22 October 1997 are of importance. They are as follows:

(a) The letter of 19 September 1997:

"Dear Yvonne

Your position

I write with reference to our meeting on the 5th September when we discussed in detail a number of serious matters giving rise to concern in relation to your work. It was agreed that both of us would think about your position while you were away.

I raised my concerns at the Partners meeting this Wednesday and I am afraid that the Partners have come to the conclusion, with regret, that the most sensible course of action would be for your employment with Osbornes to end. Our reasons for this decision are as follows:-

1. As detailed in my last letter, I was extremely disappointed that you had failed to follow my instructions in respect of the Green Form claims. Although most of the claims have now been made, Katrina discovered on receiving the balance of the Green Form housing files that the extensions had not been kept up to date, leading to further lost income.

2 I am concerned that your work continues to be subject to unacceptable delays, to the detriment of the client and the reputation of the firm. I refer in particular to the following files: [three files are then referred to]. In this vein, I was unhappy to note that you had not attended to the action required at our last meeting in May in respect of [and then the files of a case are identified].

3 You are consistently late for work and were absent from the office on 18th August 1997 without prior authorisation. That was the second occasion this year.

4 Your work has been sloppy and substandard since my last warning. I refer in particular to [and a file is identified] when you gave incorrect advice in respect of a tenancy agreement and the file of [a file is identified] when you sent the instructions to counsel without the new brief, leading to the instructions being returned and considerable embarrassment on my part. In fact, most of the work you undertook for me has needed revisiting - for example, [reference to two cases is made]. ...

5 You are clearly unhappy with your position. We discussed your feelings in some detail at our meeting and the fact that you gave the impression to members of staff that you were demotivated - in particular, that the continuance of your paralegal work in the family department was not something you wanted to do. In your absence a letter you had sent to McGoldrick Cairns requesting a training contract for 1997 was returned in the post. Quite apart from the fact that you had a personal letter franked, I was concerned that your letter gave an inaccurate impression of your current position here and obviously that you would rather seek a position elsewhere.

I note that you are employed on a fixed term contract which expires in September, having said that, we do not wish to leave you in the lurch and therefore propose that your employment continue until the 31st October 1997 or until you find a new position, if sooner.

I am sorry that things did not work out better and that I have had to write to you while you are away from the office. I had intended to hold a meeting on Monday but given that you are now planning to be away for another week, I felt that you should receive this letter as soon as possible."

(b) The letter dated 22 October 1997:

"Dear Wendy

Re Termination of Employment

You will be aware from my medical certificate I sent to Osbornes that as of today I am able to return to work.

However in the circumstances I consider that both our interests would be better served if I were permitted not to return.

In the meantime I should be grateful if you would provide me with a written reference which reflects my true capabilities particularly since I have worked for the firm as a paralegal for some 18 months.

..."

The Main Issues Arising on this Appeal

15. The main issues arising on this appeal are:

(1) whether the notice of dismissal dated 19 September 1997 was an "act complained of" by the Appellant (the "particulars issue"); and

(2) when was the date of the last "act complained of" (the "date issue").

The Particulars Issue

16. This issue was argued by both Counsel before us although they both, in our judgment correctly, accepted that the Employment Tribunal had made no decision on this issue. We agree that, notwithstanding their conclusion expressed at the end of paragraph 6 of the Extended Reasons that the Applicant failed to comply with the Chairman's order relating to the particularisation of her claim, when paragraph 6 of the Extended Reasons is read as a whole the Employment Tribunal set out the contentions of the Respondents on this issue but do not go on to state their conclusion on it.
17. In our judgment the fact that the Employment Tribunal did not state a conclusion on this issue but went on to consider what we have called "the date issue" is an indication that they did not accept the Respondents' submissions on this point. If the Employment Tribunal had accepted those submissions it would have formed a basis for their conclusion that the application was out of time.
18. In our judgment it was correctly common ground before us that we are in as good a position as was the Employment Tribunal to consider and decide this point. This is because it turns on the documents.
19. The Respondents' argument on this point is accurately summarised at the beginning of paragraph 6 of the Extended Reasons which is in the following terms:

"6 It is the Respondents' contention that the notice of dismissal was not claimed as being the last act. There is no such allegation in the Originating Application or in the Further and Better Particulars (which do not state the dismissal as being discriminatory nor of any particulars ever being given to that effect). In those circumstances, the last act was before September 1997. ..."

In their Notice of Appearance the Respondents had said (amongst other things) the following:

"1. The Respondent denies that it discriminated against the Applicant whether as alleged in the Originating Application or at all.

2. Further, the Originating Application does not disclose any alleged act of discrimination within three months prior to its presentation.

3. In the circumstances, the Respondent requests the Industrial Tribunal to hold a hearing to determine whether:-

(i) the application was presented in time; and

..."

20. It is therefore necessary to examine the details of the Appellant's complaint contained in the sheet attached to her Originating Application and her answers to the Further and Better Particulars sought by the Employment Tribunal.
21. The details attached to the Originating Application run to 12 paragraphs. The first 8 paragraphs found much of our earlier recitation of the background facts and paragraphs 8 to 12 are in the following terms:

"8. On 8 July 1997, the Applicant was handed a written warning without any prior consultation. The Respondents suggested that she was irresponsible and incompetent. Additionally, the Respondents told the Applicant that due to costs she could not commence her training in September 1997 but instead in September 1998.

9. Following the warning the Applicant requested that she be allowed to defend the allegations contained therein at a scheduled meeting. Although the Respondents agreed to this no meeting took place due to the Respondents postponing the event on several occasions.

10. On 5 September 1997 the Respondents made further allegations about the Applicant's competency. The Applicant was informed that a further meeting would be held following the Applicant's return from sick leave.

11. Before the Applicant returned to work she was dismissed by letter dated 19 September 1997.

12. By reason of the matters set out above the Applicant has suffered unlawful direct race discrimination contrary to the Race Relations Act 1975 (sic)."

22. On 5 May 1998 a Chairman of the Employment Tribunal ordered the Appellant to send to the Respondents, on or before 19 May 1998, the following particulars:

"1. Full particulars of the acts of racial discrimination of which the Applicant complains including whether it is alleged that the dismissal was effected on racial grounds and if it is so alleged giving full particulars.

2. Whether it is the Applicant's case that the discrimination was continuing and if it is so alleged giving the last date on which it is alleged there was an act complained of. If it is not so alleged then giving the dates on which acts complained of took place.

3. The racial group to which the Applicant alleges she belongs.

... "

In response by a letter dated 19 May 1998 the Wandsworth and Merton Law Centre, on behalf of the Appellant, replied as follows:

"1. The Applicant was not entitled to a lunch break whilst working as a receptionist. Her successor, however, who was white, was entitled to one.

Despite the fact that the switchboard was extremely busy, the Respondents failed to take any action to alleviate this during the Applicant's time as receptionist. The Respondents also indicated on a number of occasions that the Applicant was not competent to deal with the reception. Complaints were received from Ruth Waite, communicated via the Respondent's Personnel manager, Wendy Wright. Once the Applicant's successor commenced employment steps were taken to install direct lines to staff to reduce the weight of calls. Internal memos were also sent to staff asking them to take account of the volume of calls to the switchboard.

There was a delay in the Applicant commencing her position as paralegal in the matrimonial department as the Respondents delayed in employing a new receptionist. In contrast the paralegal position in the litigation department commenced a period of two months earlier.

The Applicant was the only employee not registered for health insurance.

The Applicant was given conflicting reasons for not being able to complete the second year of her training contract. She was informed by Ruth Waite that the Respondents had insufficient funds and by Wendy Wright that the firm did not want paralegals to become trainees. During this period another paralegal, Fiona Raymond, was training to become a solicitor.

The Applicant received less favourable treatment in relation to her form TC8. Whilst other trainees had their forms signed automatically, the Applicant's form was referred for consideration at a partners board meeting.

2. It is the Applicant's case that the discrimination was continuing. The last date on which it is alleged there was an act complained of is 19 September 1997, the date of the Applicant's dismissal.

3. The racial group to which the Applicant belongs is that of Black British of African origin."

23. By a further letter dated 20 July 1998 the Wandsworth and Merton Law Centre wrote to the Employment Tribunal in the following terms:

"We refer to your letter of 29 June directing that there should be a preliminary hearing. We realise that there has been an error in our further and better particulars of 19 May. Our letter states (in paragraph 2) that the last date on which there was an act complained of is 19 September 1997, the date of the Applicant's dismissal. However, although the Applicant was dismissed on 19 September, her contract of employment was terminated on 31 October 1997 thereby extending the period in which her originating application could be issued. The requirement for a preliminary hearing therefore appears redundant. We should be grateful for your views."

24. Counsel for the Appellant, who also represented her before the Employment Tribunal, in our judgment correctly, accepted that the details and particularisation of the Appellant's claim had not been well drafted. However, he referred us to the case of Sougrin v Haringey Health Authority [1992] ICR 650, which is a decision of the Court of Appeal. In particular, he referred us to the headnote at 650 H which reflects a passage in the judgment of Balcombe LJ at page 653 F to G, which is in the following terms:

"In order to see what it is 'the act complained of' within the meaning of section 68(1) it is necessary to look at the originating application. Since these are frequently prepared by an applicant acting without the benefit of professional advice the industrial tribunal should not approach the originating application in a technical manner, but should look at it to see what is the substance of the complaint."

25. We agree (and the Respondents did not argue to the contrary) that we (and the Employment Tribunal) should look at the details of the Appellant's complaint and the particulars provided on her behalf, to see what the substance of her complaint or complaints are.
26. We would agree that the failure of the Appellant by herself or through her representatives to identify her dismissal as an "act complained of" in response to the direct question posed in paragraph 1 of the particulars sought by the Employment Tribunal is significant and points to a conclusion that the Appellant did not rely upon her dismissal as an act complained of.
27. However, in our judgment, if the details of the Appellant's complaint annexed to her Originating Applications are read either (a) alone, or (b) with the particulars given of them, they indicate that the substance of her complaints includes an assertion that an "act complained of" is the letter dated 19 September 1998 and thus in terms of those documents her dismissal. We have reached this conclusion for the following main reasons:

(a) The details attached to the Originating Application provide a chronological account of the Appellant's employment and by paragraphs 8 to 12 this account ends with paragraphs leading to her dismissal by the letter of 19 September 1997 followed by the assertion that:

"by reason of the matter set out above the Applicant has suffered unlawful direct race discrimination",

and in our judgment a natural reading of that document leads to the conclusion that the dismissal asserted is one of the matters relied on by the Appellant to support her claim that she has suffered unlawful direct race discrimination and thus in the terms of the statute is "an act complained of",

(b) notwithstanding the failure in paragraph 1 of the particulars given by the Applicant to refer to the dismissal as an act complained of, when the particulars are read in full paragraph 2 does indicate that the Appellant relied on her dismissal by the letter dated 19 September 1997 as "an act complained of", and this conclusion is supported by the fact that it was known to both parties that the Appellant was not at work at the time the letter was written, and

(c) the letter dated 20 July 1998 supports this conclusion because it shows that it was being asserted by the Appellant that her Originating Application was in time because her dismissal was an act complained of which took place on 31 October 1997.

28. Accordingly in our judgment the substance of the details and particulars of her complaints as provided by the Appellant indicate that her dismissal was "an act complained of".
29. It follows that in our judgment the Employment Tribunal were correct not to decide this matter on the basis of the Respondents' arguments which they set out in paragraph 6 of their Extended Reasons and thus on the basis that the Appellant's dismissal was not "an act complained of".

The Date Issue

30. The Respondents' argument as to this is that by her letter dated 22 October 1997 the Appellant resigned. From that the Respondents argue that the letter dated 19 September 1997 does not constitute a continuing act but an act which took place on 19 September 1997 and thus one which took place more than three months before the proceedings were brought by the Appellant.
31. As we understand the Extended Reasons of the Employment Tribunal they accepted these arguments and founded their conclusion on the proposition that in this case the Appellant resigned and this conclusion distinguished the present case from the decision of the Court of Appeal in Lupetti v Wrens Old House Ltd [1984] ICR 348. In that case it was decided that when an employee is given notice which terminates his contract of employment, the date "when the act complained of was done" is not the date on which the notice was given but is the date upon which the contract of employment is terminated. In that case the contract of employment was terminated in accordance with, and at the expiry of, the notice. It was therefore a case where the employee was dismissed.
32. In support of the Respondents' arguments that if, as they assert, the Appellant resigned, the notice given by the letter of 19 September 1987 was an act that was done either when it was written or when the letter was received their Counsel for the Respondents referred us:

(a) to a further passage in the judgment of Balcombe LJ in the Lupetti case which appears at 351 D to G which is in the following terms:

"That is sufficient to dispose of this appeal but, in case it goes elsewhere and in order to give proper respect to the able arguments which were presented to us by both counsel in this case, it is right that we should deal with the two other grounds of appeal. The second ground of appeal was that section 68(7)(b) of the Act of 1976 provides that any act extending over a period should be treated as done at the end of that period. Mr Cofie, for the applicant, argues that the act of dismissal extended over the period between the giving of notice and the date when the notice expired. Accordingly, under that subsection, it should be treated as having occurred at the end of the period.

We accept Mr Jeremy's submissions on that ground of appeal both that it is inconsistent with the earlier argument which we have accepted - although that does not of itself render the earlier argument the less effective - but secondly this was not an act done over a period. It was an act of dismissal. Either that act took place when the notice was given or, as we have held, when the employment terminated. So we reject that ground of appeal."

and

(b) to Gloucester Working Men's Club and Institute v James [1986] ICR 603. The facts of that case appear from the headnote at 604 A to B which were in the following terms:

"The Applicant, a married couple, were employed as stewards at the employer's club and it was a term of their employment that they would not have children. On 18 February 1985, when the wife was expecting a child, they received a written notice stating that they would be dismissed because they were in breach of that term of employment and they were asked to leave on 7 April. ...

The industrial tribunal found that the act of discrimination complained of took place on 18 February when the Applicants received notice of dismissal so that the complaint had not been presented within three months of the act complained of. ..."

and in particular the passage in the judgment of this Tribunal at 606 F to 607 A was relied on by the Respondents, it is in the following terms:

"What is argued by the employers in this case is that what the applicants have complained about in their originating application was something which occurred on 18 February 1985 when they were discriminated against - that they were discriminated against by being given notice based on an alleged discriminatory act. The fact that they are not dismissed for another period of time, it is said, is nothing to the point because the act has then occurred. Once the act has occurred, although then the notice may be withdrawn, as long as it continues the act has arisen on the date when the notice has been given. That, in our judgment, fails to do justice to the section - i.e. section 6(2)(b) - which gives the ground upon which a person can bring a claim of discrimination; and it has to be either dismissal or any other detriment. It is not suggested (although it could be, in our judgment) that the giving of notice for a discriminatory reason is, in the instant case subjecting a person to a detriment. Having the threat of dismissal hanging over somebody even though it is not actually carried out is capable of amounting to subjecting somebody to a detriment. But in this case the claim is of dismissal. Therefore, although the notice of application sets out the date 18 February 1985, the claim stands or falls on whether there has been a dismissal; and if the simple question is posed, 'Well, when was he/she dismissed?' there is only one answer, and that is, in April."

33. As is apparent from the citations set out above both of these cases dealt with circumstances in which the employees were dismissed. They do not deal with circumstances when the notice given to terminate employment turned out, in the events that happened, not to be causative of the termination. In those circumstances it was accepted (in our judgment correctly) by Counsel for the Respondents that the giving of the notice could be "any other detriment" within section 4(2)(c) of the Race Relations Act 1976. But her argument was that that detriment took place on the date the notice was given or possibly the date it was received and did not continue until the termination of the contract of employment by resignation.
34. This argument is only relevant if the Appellant did not resign. As to this the Respondents' argued that before the Employment Tribunal it was conceded that the Appellant resigned and therefore that it is not now open to the Appellant to argue (as she does through her Counsel) that she did not resign. As to this point, unsurprisingly, Counsel for the Respondents referred us to the decision in the Court of Appeal in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 and, in particular, to the headnote to that case and to paragraphs 19 and 20 of the judgment. We should add that our attention was also drawn in particular to paragraphs 25 and 28 to 30 of the judgment. Paragraph 20 of the judgment in the Jones case is in the following terms:

"These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk, the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the Appellant or his advocate would not be a sufficient reason. In Newcastle, the Employment Appeal Tribunal (presided over by Talbot J) said that it was wrong in principle to allow new points to be raised, or conceded points to be reopened, if further factual matters would have to be investigated. In Hellyer, this court (in a judgment of the court delivered by Slade LJ which fully reviews the authorities) was inclined to the view that the test in the Employment Appeal Tribunal should not be more stringent than it is when a comparable point arises on an ordinary appeal to the Court of Appeal. In particular, it was inclined to the view of Widgery LJ in Wilson v Liverpool Corporation [1971] 1 WLR 302, 307, that is to follow:

'The well-known rule of practice that if a point is not taken in the court of trial, it cannot be taken in the appeal court unless that court is in possession of all the material necessary to enable it to dispose of the matter fairly, without injustice to the other party, and without recourse to a further hearing below'."

35. We accept that this is clear authority of the Court of Appeal that notwithstanding the informal nature of proceedings before Employment Tribunals and the fact that parties who appear before Employment Tribunals regularly have no legal training or expertise, that this Tribunal should take the rigorous approach referred to in the Jones case in determining whether or not new points, or points that have been conceded, could be taken on appeal. In one sense this approach appears to be at odds with the approach taken by the Court of Appeal in the Sougrin case but in our judgment the two cases work together because the decision in the Sougrin case that a technical approach is not to be taken to the identification of the issues before the Employment Tribunal has the effect that a liberal and substantive approach is taken to the identification of the points raised before the Employment Tribunal. Further, it is the case that where parties raise facts which give rise to well established points of law it is the duty of Employment Tribunals to consider those points (see Langston v Cranfield University [1998] IRLR 173).
36. As appears from the judgment in the Jones case in large measure the approach set out therein is based upon the public interest in finality in litigation. Further it appears from paragraph 20 that an important factor to be taken into account is whether or not the new point (or conceded point) cannot be dealt with without further evidence. If it can be dealt with without further evidence then the approach based on the public interest in finality in litigation loses much of its force.
37. Before leaving the Jones case we also note that it appears from paragraph 25 of the judgment that the concession was formally and clearly made.
38. Counsel for the Appellant told us, and we accept, that he had not seen the letter dated 22 October 1997 before he arrived at the Employment Tribunal on the date of the hearing. He also told us, and we accept, that in his discussion with Counsel for the Respondents before the hearing, he accepted that the letter was a letter of resignation. It followed from that, as we understand it, that the case was presented to the Employment Tribunal on the basis that the letter dated 22 October 1997 was a letter of resignation and that the Appellant had resigned.
39. But paragraph 5 of the Extended Reasons contains the following passage:

"Counsel for the Applicant relied heavily on the P45 which set 31 October as the leaving date. That document was dated 27 October 1997. It is Applicant's contention as the Respondents accept in paragraph 5.3 of their submissions that the Applicant resigned on 22 October 1997. If that was the end of the employment (which is not accepted by the Applicant), it was within the 3 month period before the presentation of the Originating Application."

40. This passage from paragraph 5 of the Extended Reasons demonstrates to us that there was some confusion before the Employment Tribunal as to the respective positions of the parties. Firstly (and perhaps not importantly) it was our understanding that it was the Respondents' contention that the Applicant had resigned and that this was conceded or accepted, by the Applicant. However (and far more importantly) it is clear from this paragraph that whatever was said, accepted or conceded relating to a resignation the Applicant was contending before the Employment Tribunal that her contract of employment did not terminate on 22 October 1997 and that it continued until 31 October 1997.
41. This assertion that the contract of employment continued until 31 October 1997 is plainly at odds with what would normally be understood from a concession that the Applicant resigned on 22 October 1997. This is because a resignation brings a contract of employment to an end.
42. Albeit that as the Employment Tribunal recognised in the passage we have quoted from paragraph 5 of the Extended Reasons the Originating Application was within three months of the termination of the employment, whether it ended by dismissal or resignation as a result of the letter dated 22 October, in our judgment, this passage in paragraph 5 of the Extended Reasons demonstrates that there was some confusion before the Employment Tribunal as to the nature and effect of any concession or common ground between the parties concerning the issue whether the Appellant resigned.
43. In our judgment the fact that paragraph 5 of the Extended Reasons records that an issue before the Employment Tribunal was whether or not the contract of employment continued beyond the letter of 22 October 1997 has the result that although (perhaps inappropriately and as a result of inexperience) Counsel for the Appellant accepted that that letter was a letter of resignation and that the Appellant resigned. In truth the issue as to whether there was a resignation, or a resignation that brought the contract of employment to an end before 31 October 1997 and independently of the notice dated 19 September 1997 was before the Employment Tribunal.
44. It follows, in our judgment, that the issue whether or not the Appellant resigned in the sense that her resignation brought the contract of employment to an end independently of the notice given on 19 September, and thus that she was not dismissed, was before the Employment Tribunal and we are not precluded from dealing with this point on the basis that it was not taken or conceded in the Employment Tribunal.
45. However, if we are wrong as to that analysis and the point was conceded before the Employment Tribunal, in our judgment this is a case in which we should exercise our discretion to allow the point to be argued before us. Our reasons for reaching this conclusion are as follows:

(a) the point can be dealt with without further evidence being given, and

(b) there is some confusion as to the effect and extent of any concession made during the hearing and prior to the start of the hearing it was being asserted that the Appellant was dismissed and that dismissal took effect on 31 October 1997 (see for example the letter of 20 July 1998).

46. As to point (a) Counsel for the Respondents asserted that if it had not been conceded that the Appellant had resigned, she would have wished to call evidence and thus, she submitted, there was a need for further evidence on the point. On being pressed by us Counsel for the Respondents failed to identify the nature of the evidence she would have wished (or would now wish) to call. As to this it should be remembered that when she and her clients arrived at the Employment Tribunal there had been no concession and therefore she and her clients (who are Solicitors) would have come prepared to give such evidence as they thought was relevant on this point. The relevant partner in the Respondents was present at the Employment Tribunal hearing but as we have said Counsel for the Respondents was unable to tell us what evidence that partner would have given on the point as to resignation. This demonstrates to us that between 22 and 30 October 1997 there was no discussion between the Appellant and the Respondents concerning the letter of 22 October 1997 and the only relevant communications between the parties are those that are in writing and are before us. Indeed as we understood it this was common ground.
47. In our judgment the letter of 22 October 1997 cannot, on its face, be read on its own but has to be read together with the letter of 19 September 1997. When both letters are read together (or indeed even if the letter dated 22 October 1997 is read on its own) we are clear that the letter of 22 October 1997 is not a free-standing letter of resignation. It is a request by the Appellant that she need not return to work during the remainder of the notice period given by the letter of 19 September 1997. The Respondents did not reply to that letter either by (a) agreeing that she need not return to work and that she was, or should be, treated as resigning (b) treating her request as something which entitled them to terminate the contract of employment.
48. It follows that in our judgment in concluding or accepting that the Appellant resigned the Employment Tribunal erred in law.
49. In our judgment it was correctly accepted that if as we have found the Appellant was dismissed her Originating Application was in time whether that dismissal took effect on 22 October 1997, the date on which that letter was received or 31 October. Although the point is academic we record that in our judgment she was dismissed on 31 October 1997 pursuant to the notice contained in the letter of 19 September 1997. We are of this view because the request made by the letter of 22 October 1997 was not "followed up".
50. Finally, and although it is not necessary for us to go on to consider this point we add that we are not satisfied that the authorities relied on by the Respondents constitute binding authority to the effect that if (contrary to our view) the Appellant had resigned the last act complained of was a "one off" act took place on 19 September and did not continue to have effect until the resignation. It seems to us that an important part of the reasoning in the two authorities relied on by the Respondents (i.e. the Lupetti case and the Gloucester Working Men's Club case) is that the employee was dismissed and that therefore the "act complained of" was a dismissal which it was held takes place on the date that the dismissal takes effect and the contract of employment is terminated. It seems to us that these cases do not deal expressly with the issue whether a notice of dismissal which, in the events that happen, does not bring about the termination of the contract of employment by a dismissal it is a "one off" act, which does not, or cannot, continue to have effect as an act which extends over the period up to the date when it is superseded and therefore ceases to have an effect. Indeed it seems to us that the point made in the passage we have cited from the Gloucester Working Men's Club case, namely that:

Having the threat of dismissal hanging over somebody even though it is not actually carried out is capable of amounting to subjecting somebody to a detriment.

supports the conclusion that in those circumstances the notice has, or can have, a continuing effect.

51. However as we did not invite the parties to pursue this point in detail in their oral arguments we will refrain from reaching a conclusion on it.

Conclusion

52. We allow this appeal and find that the Appellant issued her Originating Application within the relevant statutory time limit and therefore that the Employment Tribunal has jurisdiction to hear her complaint.
53. As is apparent from this judgment we are not expressing any views as to the complaints other than when the last "act complained of" took place. All other issues that arise in respect of the complaints will be a matter for the Employment Tribunal.